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Subjects

Power-Based Analysis

of

International

Guido Acquaviva *

ABSTRACT

Law:

A

In this Article, the Author challenges the definition of the term “state” that is commonly accepted in U.S. scholarship as the basis for assessing whether an entity is a subject of international law. By analyzing a number of cases that do not fit into the “traditional” model—including the Holy See, Napoleon, and the Confederacy—the Author reaches the conclusion that the only essential element of a subject of international law is its sovereignty. An entity is sovereign when it is able effectively to assert that it is not subordinate to another authority: territory and population are therefore not essential attributes of international personality. The Author also explores the close relationship between the status of an entity as a subject of international law and international responsibility. The conclusions and analytical approaches employed in the Article are applicable to the study of entities long considered “lesser” subjects than states, such as intergovernmental organizations, insurgents, or belligerents, and even to the analysis of contemporary terrorist networks such as al-Qaeda.

* LL.M. in International and Comparative Law, Tulane Law School; Ph.D. in Law, History, and Theory of International Relations, Università degli studi di Padova. Associate Legal Officer at the International Criminal Tribunal for the former Yugoslavia. The opinions expressed in this Article are those of the Author and do not necessarily reflect those of the International Tribunal or of the United Nations. The Author would like to express his gratitude to Julie Barr, Lucia Catani, Ron Davidson, Professor Tullio Scovazzi, and Alexander Zahar for commenting on earlier drafts of this Article. The Author can be reached at guido_acquaviva@yahoo.com.

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TABLE OF CONTENTS

I

INTRODUCTION

2

II.

STATE ACTORS?

4

A. Attempting to Define “State”

4

B. Recognition

6

C. Atypical Quasi-State Actors?

9

1. The Holy See

9

2. The Boers

13

3. Czechoslovakia

15

4. Spain and Turkey

17

5. The Confederate States of America

21

6. China and Taiwan

25

7. Napoleon

31

III.

POWERS AS SUBJECTS OF INTERNATIONAL LAW

34

A. Subjects superiorem non recognoscentes

34

B. Intergovernmental Organizations and Other Subjects

40

C. Is There a Real Difference in the Treatment of State and Non-State Actors?

42

D. Effective Authority

44

IV.

SHIFTING THE FOCUS TO RESPONSIBILITY

46

V.

CONCLUSIONS

50

Non sunt multiplicanda entia praeter necessitatem. Ockham’s Razor

I. INTRODUCTION

The idea that states are the primary subjects of international law stems from the fact that they appear to constitute the most complete type of subject, having a more or less stable authority over a generally well-defined territory and population. Arguably, this cannot be said for entities such as international organizations, which generally lack a territorial basis, or of belligerents, which are not deemed to possess the quality of a stable authority. This Article aims to challenge the idea that since states are the primary subjects of international law, 1 they are qualitatively different

1. Practically all scholars dealing with the issue of subjects of international

law hold this view. See, e.g., IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL

LAW 58 (6th ed. 2003); DOMINIQUE CARREAU, DROIT INTERNATIONAL §§ 813-816 (7th ed.

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from other subjects of international law. If proved, this proposition would entail that non-state actors have, in principle, the same rights and obligations as states under customary international law. 2 The fundamental consequence would be the need to rethink the way in which the international community regards non-state actors. Part II of this Article first addresses the most common definition of “state” under international law. It also identifies a number of borderline cases in which subjects of international law not falling within that definition raise interesting questions as to the propriety of using this definition in deciding whether a certain entity is a subject of international law. These cases, although admittedly few, are assumed to be representative of a larger number of similar instances. Although these instances vary greatly in nature, they all point to the same conclusion. Also, they are gathered from different time periods, because the assumption is that the fundamental rules of international law relating to the personality and identity of subjects have not changed during the past centuries. Part III of this Article then proposes a more general definition of subjects of international law, a definition capable of easing the incongruities raised by the examples discussed in Part II. In particular, it suggests that for an entity to be considered a subject of international law, the entity must be able to assert effectively that it is not subordinate to another authority; in other words, it must have the ability not to recognize any entity as a superior. Such a statusdefined as sovereignty 3 is established through the analysis of that entity’s powers within the entity itself and, under certain circumstances, of its relations with other subjects of international law.

Part IV of the Article explores the real basis for this definition and puts forward the view that a close link exists between theories of

2001); GEORG DAHM ET AL., 1 VÖLKERRECHT 125 (1989); LOUIS HENKIN ET AL., INTERNATIONAL LAW CASES AND MATERIALS 241 (3rd ed. 1993); STARKES

INTERNATIONAL LAW 85 (I.A. Shearer ed., 11th ed. 1994); JOE VERHOEVEN, DROIT

INTERNATIONAL PUBLIC 49-50 (2000); Colin Warbrick, States and Recognition in International Law, in INTERNATIONAL LAW 205 (Malcolm D. Evans ed., 2003).

2. See, e.g., CARREAU, supra note 1, § 816. In fact, “[t]he monolithic view of

statehood upon which traditional international law doctrine depends significantly limits the scope of international law. One consequence is that it establishes a model for full international personality that other claimants for international status cannot

replicate.” HILLARY CHARLESWORTH & CHRISTINE M. CHINKIN, THE BOUNDARIES OF INTERNATIONAL LAW 125 (2000).

3. Although virtually every definition of the term “sovereignty” has been

challenged, its use as a synonym of “independence” to explain the “Grundnorm” of international relations has been dominant at least since the end of the eighteenth century. See, e.g., Stéphane Beaulac, Emer de Vattel and the Externalization of Sovereignty, 5 J. HIST. INTL L. 237, 286-92 (2003). The fact that sovereignty is a

complex concept, pervaded by political and other considerations, is also suggested in James Rosenau, Sovereignty in a Turbulent World, in BEYOND WESTPHALIA? STATE

SOVEREIGNTY

Mastanduno eds., 1995).

AND

INTERNATIONAL

INTERVENTION

191

(Gene

Lyons

&

Michael

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personality under international law, on the one hand, and international responsibility, on the other. Finally, the conclusions in Part V address the potential significance of the application of the findings presented in the previous parts to cases that do not apparently harmonize with the traditional view of international subjects.

II. STATE ACTORS?

A. Attempting to Define “State”

The Restatement (Third) of Foreign Relations explains: “Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.” 4 This definition is fundamentally consistent with the one contained in the Montevideo Convention on the Rights and Duties of States, which provides that “[t]he State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other States” 5 and is referred to by scholars, especially in the United States, as indicative of customary international law. 6 The aforementioned elements are often defined “requirements” or “essential conditions” for an entity to be regarded as a state under international law. 7 This definition is not satisfactory. First, part of the definition requires that the entities with which a state engages in formal relations be states themselves. But because they can only be states if they are able to have relations with other such entities, a vicious circle seems unavoidable. It seems difficult to characterize the capacity to engage in formal relations as an essential element, if only

4. RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 201 (1987).

5. Convention on the Rights and Duties of States, Dec. 26, 1933, art. 1, 165

L.N.T.S. 19, reprinted in 28 AM. J. INT'L L. 75 (Supp. 1934) [hereinafter Montevideo Convention].

6. See Thomas D. Grant, Defining Statehood: the Montevideo Convention and

Its Discontents, 37 COLUM. J. TRANSNATL L. 403, 405-22, 435-47 (1999) (explaining different definitions of state and the insufficiencies of the definition enshrined in the

Montevideo Convention).

7. See, e.g., HENKIN ET AL., supra note 1, at 246; Christian Tomuschat,

International Law: Ensuring the Survival of Mankind on the Eve of a New Century, in

281 HAGUE ACADEMY OF INTERNATIONAL LAW COLLECTED COURSES 9, 96 (1999); see

also I.I. LUKASCHIUK, MEZHDUNARODNOE PRAVO 293 (1999) (evidencing that Soviet and Russian legal literature identifies these three elements as “making up” the state).

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because this would entail the need to pre-define whether the other entities are already states. The Comment to the Restatement further cautions that, although the definition is generally accepted, “each of its elements may present significant problems in unusual situations.” 8 If a definition is generally accepted, but each of its elements is put into doubt in borderline situations, the solution would be to look for a better definition, not to try to force unusual situations to conform to the legal definition. 9 Uncommon situations test the veracity and reliability of the definition itself, at least if the definition is to serve any practical purpose. 10 Also, the definition does not place enough emphasis on the element of “external” sovereignty. The expression “under the control of its own government” in the Restatement may admittedly refer to this requirement, but it is insufficient to identify properly this feature. In fact, federated states may be said to rule a defined territory and population, and some of them are allowed to enter into relations with other subjects—in certain cases even with other subjects of international law. They are not, however, states within the meaning of international law. In the case of federated states, it is their lack of independence with regard to the federal state that prevents them from being considered subjects of international law. This is the case, for example, for the states and territories of the United States, 11 or the republics making up the former Soviet Union until 1991. The latter is especially interesting because, notwithstanding the fact that Byelorussia (now Belarus) and the Ukraine were among the founding members of the United Nationsan organization that is open only to “states” pursuant to a joint reading of articles 3 and 4 of its Charternone of the republics constituting the U.S.S.R. was a state within the meaning of international law. 12

8. RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 201 cmt. a (1987).

9. See MALCOLM N. SHAW, INTERNATIONAL LAW 217 (5th ed. 2003) (stating

that “whether or not the entities discussed above constitute international persons or

indeed states or merely part of some other international person is a matter for careful

consideration in the light of the circumstances of the case

”).

10. Such as including some entities within the category and excluding others.

11. In United States v. Belmont, the U.S. Supreme Court applied this rule of

international law, stating that “the external powers of the United States are to be

In respect of all international

negotiations and compacts, and in respect of our foreign relations generally, state lines disappear.” 301 U.S. 324, 331 (1937).

– COMMENTARY 156 (1994). It has been suggested by local scholars that the two Soviet republics indeed did play a certain role in international relations thanks to their membership in various U.N. bodies. See Svetlana Svilas, Istoriografia i istochniki po istorii vneshnepoliticheskoj deiatelnosti BSSR v 1954-1990 gg., 2003(4) BELARUSSIAN

A

exercised without regard to state laws or

12.

See

BRUNO

SIMMA,

THE

CHARTER

OF

THE

UNITED

NATIONS

JOURNAL OF INTERNATIONAL LAW AND INTERNATIONAL RELATIONS 40.

The example of

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It is therefore difficult to accept the Restatement’s definition of a “state” under international law. But it will be assumed that this definition describes what a state in the sense of international law looks like. Throughout this Article, this description of the state will be identified as the “traditional” way to address the problem of statehood in international law—this being the view widely held in the past decades, especially among U.S. scholars.

B. Recognition

Before introducing the cases, a short explanation of the phenomenon of recognition is also necessary. “Recognition of governments” denotes the act through which it becomes apparent that a subject of international law is willing to enter into certain relations with another authority. 13 Many states today assert that they do not intend explicitly to recognize governments. 14 “Recognition of states” is the act through which a subject of international law indicates its willingness to enter into inter-state relations with another subject of international law and thus is evidencebut not proofthat the latter has acquired international personality. 15 Recognition may be explicitthrough an official statement issued by the recognizing authorityor, more often, implicitthrough some other act presupposing recognition that the other entity is a subject of international law. 16 There are two fundamental reasons why recognition may not establish the international personality of states and other subjects. First, the principle of the sovereign equality of the subjects of international law would be infringed by the possibility that one or more subjects could deny the existence of another subject by refusing to recognize it. Second, it is illogicaland ultimately impracticalto allow an entity to be considered a subject of international law by some subjects but not by others. Since, for example, it is common that a newly

Byelorussia and the Ukraine as founding members of the United Nations is particularly curious in view of the letter dated February 10, 1945 by Franklin D.

Roosevelt, President of the United States, to Joseph V. Stalin, Secretary-General of the U.S.S.R. Communist Party, suggesting that the U.S. should also be given two additional votes in the General Assembly. Stalin apparently assented to this view, but the United States did not pursue the matter further. The letter by Stalin, with reference to the previous correspondence, is reprinted in EDWARD R. STETTINIUS, JR., ROOSEVELT AND THE RUSSIANS 283 (Walter Johnson ed., 1949).

13. STEFAN TALMON, RECOGNITION OF GOVERNMENTS IN INTERNATIONAL LAW

269 (Ian Brownlie ed., 1998).

14. Id. at 3-5.

15. See, e.g., ANTONIO CASSESE, INTERNATIONAL LAW 48-49 (2001); MARIO

GIULIANO ET AL., DIRITTO INTERNAZIONALE (PARTE GENERALE) 84-96 (1991).

16. See, e.g., CASSESE, supra note 15, at 48-49; GIULIANO ET AL., supra note 15,

at 84-96.

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created state is not immediately recognized as a state by the international community as a whole, the absurd result would follow that an effective and independent government over a population and a territory would be considered a state by some subjects, but as non- existentwithin the international realmby others. It is not clear with which rules of customary international law an entity lacking unanimous recognition would be bound to comply. 17 This means that an independent authority, existing as a matter of fact, 18 is thereafter recognized by other subjects wishing to enter into some kind of intercourse with it; such recognition, however, has no bearing on the fact that this subject already exists and is part of the so-called “international community.” Independence as the essential attribute of all subjects of international law—a topic further analyzed in this Article—also demonstrates that recognition is not a requirement for a state to be a subject of international law. 19 In 1991, the European Community issued “guidelines” for the recognition of republics aspiring to independence during the process of the dissolution of the Soviet Union and Yugoslavia in the early

17. See CASSESE, supra note 15, at 48-49; GIULIANO ET AL., supra note 15, at

84-96; see also HANS KELSEN, DAS PROBLEM DER SOUVERÄNITÄT UND DIE THEORIE DES

VÖLKERRECHTS ch. 8 (1920).

18. In Russian Reinsurance Co. v. Stoddard, the court stated:

The fall of one governmental establishment and the substitution of another governmental establishment which actually governs; which is able to enforce its claims by military force and is obeyed by the people over whom it rules, must profoundly affect all the acts and duties, all the relations of those who live within the territory over which the new establishment exercises rule. Its rule may be without lawful foundation; but lawful or unlawful, its existence is a fact and that fact cannot be destroyed by juridical concepts.

240 N.Y. 149, 158 (N.Y. 1925).

19. It is sometimes suggested that, for example, Member States of the

European Union are not fully sovereign in that decisions of organs such as the European Commission or the European Court of Justice have supremacy and direct effect within their territories. See, e.g., Michael P. Scharf, Earned Sovereignty:

Juridical Underpinnings, 31 DENV. J. INTL L. & POLY 373, 376-77 (2003). But because a state has given its consent to be bound by treaties or by decisions of other subjects of international law and can withdraw its consent, it remains a subject of international law regardless of these self-imposed limitations. The power of these organs is a mere

product of an agreement between states: the authority of the organization’s acts derives from the founding treaty. See Gaetano Arangio-Ruiz, Dualism Revisited. International Law and Interindividual Law, 86 RIVISTA DI DIRITTO INTERNAZIONALE

909, 998 (2003) [hereinafter Arangio-Ruiz, Dualism Revisited]. In fact, the principle nemo plus iuris transferre potest quam ipse habet and its corollaries have been recognized since the Wimbledon Case, when the Permanent Court of International

places a

Justice stated that “[n]o doubt any convention creating an obligation

restriction upon the exercise of the sovereign rights of the

But the right of

entering into international engagements is an attribute of State sovereignty.” S.S. Wimbledon (Gr. Brit., Fr., Italy, Japan, Pol. v. F.R.G.), 1923 P.C.I.J. 25 (ser. A) No. 1

(Aug. 17).

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1990s. 20 Contrary to commonly held belief, 21 these guidelines do not show a novel approach, but rather follow the long-standing practice of trying to impose specific obligations on new subjects. To mention only one example, following the Bolshevik revolution in Russia in 1921, the French Minister of Foreign Affairs declared that

Le gouvernment français n’a pas l’intention de reconnaître le pouvoir des soviets tant que celui-ci n’aura pas donné des garanties de sa volonté de se conformer au droit des gens et de respecter les engagements et les obligations des Gouvernments russes qui l’ont précédé à l’égard des gouvernments et des particuliers étrangers. 22

Whether or not the proponents of such statements actually abided by them, the purported aim appears to be the same: setting standards for governments to be recognized within the “family of the nations.” 23 But these kinds of declarations by (older) members of the international community imply that the new entities are already

20. The Declaration on Yugoslavia was issued at the Extraordinary Ministerial

Meeting held on December 16, 1991, in Brussels. See European Community:

Declaration on Yugoslavia and on the Guidelines on the Recognition of New States, Dec. 16, 1991, 31 I.L.M. 1485. It contained the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, where EC Member States agreed to

recognise, subject to the normal standards of international practice and the political realities in each case, those new states which, following the historic changes in the region, have constituted themselves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations.

Id.

21. See, e.g., Diane F. Orentlicher, Separation Anxiety: International Responses

to Ethno-Separatist Claims, 23 YALE J. INTL L. 1, 66 n.374 (1998); Marc Weller, Current Development: the International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, 86 AM J. INTL L. 569, 587-88 (1992). But see Martii

Koskenniemi, The Place of Law in Collective Security, 17 MICH. J. INT'L L. 455, 490 n.54 (1996) (suggesting that this approach to the recognition of states constitutes a “resuscitated” approach).

22. Answer by the representative of the French Government during a

parliamentary debate, 5 January 1921, in ALEXANDRE CHARLES KISS, 2 RÉPERTOIRE DE

LA PRATIQUE FRANÇAISE EN MATIÈRE DE DROIT INTERNATIONAL PUBLIC 385 (1966).

23. The same applies to decisions of “non-recognition” by the United Nations.

See, e.g., Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16, 58 (June 21) (holding that U.N. Member States must “recognise the illegality of South Africa’s presence in Namibia” and refrain from acts implying recognition of the South African government’s authority over that territory). This decision, not based on general international law but binding only Member States of the United Nations under article 25 of the U.N. Charter implies that, pursuant to the principle pacta tertiis nec nocent nec prosunt, absent the Security Council’s binding statement, states would retain their freedom to recognize or not. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 I.C.J. 131 (July 9) (separate opinion of Judge Higgins), available at http://www.icj- cij.org; SIMMA, supra note 12, at 407-09, 416.

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subjects of international law. No state would ask entities that are not already subjects of international law to undertake international legal obligations. An entity has certain rights and obligations only because it already is a subject; others may wish to force compliance under the threat of non-recognition from a political standpoint, and therefore isolation, but this stand does not, and may not, affect the legal personality of those new entities. 24 To hold the contrary, one would need to argue that an entity lacking the quality of a subject of international lawand not enjoying the rights and duties thereofacquires that status by starting to comply with the legal obligations of a subject, which it still is not. Such reasoning leads to the absurd result that an entity would only become a subject of international law when it finally complies with those duties, and its conduct is finally acknowledged by others (a process that might take considerable time). Similarly, continued recognition of entities that have ceased to fulfill the requirement of effectiveness and independence shows that sometimes recognition is not based on any consistent set of empirical criteria, but rather on the acceptability of that entity “to current international mythologies of legitimate statehood.” 25 This is another reason not to assign excessive importance to recognitions.

C. Atypical Quasi-State Actors?

A first critique of the traditional model of the international community relies on the recognition that there are certain actors of international law that are treated like states (and are even sometimes defined as states), although they do not meet all the criteria that are traditionally deemed necessary for them to be called states. The following pages contain an analysis of various quasi-state actors.

1. The Holy See

“When I request an audience from the Vatican, I do not go to see the King of Vatican City, but the head of the Catholic Church.” 26 This statement by Dag Hammarskjöld, Secretary-General of the United

24. In this Article, the terms “subject” and “actor” of international law are used

as synonyms. But see Pierre-Marie Dupuy, Sur les Rapports entre Sujets et “Acteurs” en Droit International Contemporain, in MANS INHUMANITY TO MAN: ESSAYS ON

INTERNATIONAL LAW IN HONOUR OF ANTONIO CASSESE 261 (Lal Chand Vohrah et al.

eds., 2003).

25. CHRISTOPHER S. CLAPHAM, AFRICA AND THE INTERNATIONAL SYSTEM: THE

POLITICS OF STATE SURVIVAL 14 (1996) (emphasis omitted).

26.

EDWARD GRATSCH, THE HOLY SEE AND THE UNITED NATIONS 1945-1995 10

(1997).

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Nations between 1953 and 1961, describes the paradox of the relationship among the Holy See, the Vatican, and the Catholic Church. The Roman Pontiff, supreme head of the Catholic Church, has occupied a position of high political authority since the Middle Ages and, through the vicissitudes leading to the end of the “universal” rule of the Holy Roman Empire and the gradual formation of a community of sovereign entities, has acquired a status equal to that of a head of state. 27 Part of the confusion stems from the fact that the Pontiff has, for most of the existence of the Holy See, ruled the Papal States situated in central Italy. Only for a certain period after 1808, and then again between 1870 and 1929, did the Pontiff have no jurisdiction over any territory at all. 28 Following the signature of the Lateran Treaty, the Pontiff now rules the Vatican City. 29 But these changes in territorial control (or lack thereof) have not affected in any sense the international personality of the Holy See. After the conquest of the Papal States by Napoleon in 1808, a concordata real international agreement between sovereign subjects 30 was signed by Napoleon and the Pope, ensuring the exercise of the activities of the Pontiff “in the same forms of his precedessors,” as well as the right to receive and

27. On this issue, see the decision issued by the Italian Court of Cassation, 5 th

section (penal), on July 17, 1987 in the case In re Marcinkus et al., 1988 RIVISTA DI

DIRITTO INTERNAZIONALE 216. According to the court:

[O]f no importance, for the purpose of this decision, is the examination of the

causes, of the reasons and of the historical origins of the present position of the

The only determining and

relevant issue to evaluate is, in this matter, its undisputed and undisputable

nature of subject of international law.

Holy See, within the international legal

Id. (translated by author).

28. See 2 J.H.W. VERZIJL, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE

295-97 (1969).

29. See Treaty of the Lateran, Feb. 11, 1929, Italy-Vatican City, O.V.T.S. 161,

Europ T.S. No. 590019, reprinted in 23 AM. J. INTL L. 187 (Supp. 1929) [hereinafter Lateran Treaty]. Article 2 of the Lateran Treaty provides, “Italy recognises the sovereignty of the Holy See in international matters as an inherent attribute in conformity with its traditions and the requirements of its mission to the world,” and

article 3 states, “Italy recognises the full ownership, exclusive dominion, and sovereign authority and jurisdiction of the Holy See over the Vatican as at present constituted, together with all its appurtenances and endowments, thus creating the Vatican City, for the special purposes and under the conditions hereinafter referred to.” Id.

30. Concordats are international treaties relating to the status of the Roman

church and its ministers and to matters of cult within the territory of the states with which they are concluded, and they are therefore distinguishable on grounds of their

content, not of their nature. See Gaetano Arangio-Ruiz, On the Nature of the International Personality of the Holy See, 1996 REVUE BELGE DE DROIT INTERNATIONAL 354, 365.

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appoint ambassadors. 31 Even after the conquest of Rome by the Italian state in 1870, the Holy See continued to maintain its activities and relations with other subjects of international law as if nothing had changed. 32 The Holy See is currently party to various conventions, including the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 1864, 33 the Geneva Conventions of 1949, 34 the Convention on the Rights of the Child of 1989, 35 and the Vienna Convention on Diplomatic Relations. 36 The Holy See is a member of the World Intellectual Property Organization, 37 a member of the International Atomic Energy Agency, 38 and has the status of the only “Non-member State Permanent Observer to the United Nations.” 39 These facts show that, regardless of the doctrinal differences and

31. Concordat of Fontainebleau of January 25, 1813, 5 Martens Recueil des

Traités 552 (Supp. I).

32. See the ruling by the Italian Court of Cassation, 1 st section (civil) of

December 3, 1988, (reprinted in ALBERTO MIELE, 2 LA COMUNITA’ INTERNAZIONALE (I

SOGGETTI) 67 (2000)), holding that “the Holy See has survived as a subject of international law to the extinction of the Pontifical state due to debellatio, occurred in 1870 as a consequence of the annexation of Rome by the Italian state” (translated by author). See also Josef Kunz, The Status of the Holy See in International Law, 46 AM. J. INTL L. 308, 312 (1952) (noting that during the period 1870-1929, the Pope acted as an international mediator between Germany and Spain and as an arbiter between Haiti and Santo Domingo; during the First World War, the Holy See had vessels with its own flag declared neutral in the hostilities).

33. For the original French text of the Convention for the Amelioration of the

Condition of the Wounded in Armies in the Field of 1864, see 129 Consol. T. S. 361, 362.

For the status of ratifications, see http://www.icrc.org (last visited Nov. 2004).

34. For the text of the Geneva Conventions of 1949, see 75 U.N.T.S. 31, 85, 135,

287. For the status of ratifications, see http://www.icrc.org (last visited Nov. 2004).

35. For the text of the Convention on the Rights of the Child of 1989, see 28

I.L.M. 1448. For the status of ratifications, see http://www.icrc.org (last visited Nov.

2004). The United States of America and Somalia are the only countries that have not ratified the Convention.

36. For text of the Vienna Convention on Diplomatic Relations, see 500

U.N.T.S. 95. It was already at the Congress of Vienna of 1815 that the “Règlement on the Precedence of Diplomatic Agents” was drafted, which “n’apportera aucune

innovation relativement aux Représentants du Pape.” See 64 Consol. T.S. 2.

37. For the text of the Convention establishing the World Intellectual Property

Organization, see 828 U.N.T.S. 3. For the members of the organization, see http://www.wipo.int (last visited Nov. 2004).

38. For the Statute of the International Atomic Energy Agency, see 276

U.N.T.S. 3 and subsequent amendments. For the members of the organization, see http://www.iaea.org (last visited Nov. 2004).

39. See http://www.un.org/Overview/missions.htm#nperm (last visited in Nov.

2004). On July 1, 2004, the U.N. General Assembly expanded the possibilities of participation in the organization by the Holy See; the Holy See is now allowed to participate in the Assembly’s general debate (after the last member on the list), to respond to speeches made during debates, to circulate its communications directly as official documents of the organization, to co-sponsor draft resolutions, and to raise a “point of order” during committee meetings. See G.A. Res. 314, U.N. GAOR, 58th Sess., U.N. Doc. A/RES/58/314 (2004).

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theories, the Holy Seethough not a state under the definition of the Montevideo Conventionis considered, in essence, an equal to states—par inter pares. 40 The Holy See is the government of the Church and, de facto, also of the minuscule city of the Vatican; there is no reason to create complex theories on the relationship among these three bodies. The Vatican City lacks independence and is an entity governed by the Holy See: it is therefore not a subject of international law. It is true that, on some occasions, the Holy See prefers to deal with certain matters of its own through the Vatican state. 41 But if one is to go beyond mere appearances, it is evident that the real subject on the international plane is the Holy See, which effectively controls the Vatican City (a mere territorial administration) and the Catholic Church (the world-wide network of persons and institutions). An example clarifies this apparent confusion. In 1993, the Holy See and Israel signed a treaty which, in addition to mutual recognition and the establishment of diplomatic relations, relates to the regime of the

Catholic Church on Israeli territory. 42 Article 1.2 of the treaty states

affirms the Catholic Church’s commitment to

“[t]he Holy See

uphold the human right to freedom of religion and conscience, as set forth in the Universal Declaration of Human Rights and in other

international instruments to which it [the Holy See] is a party.” 43 Thus, the parties agreed that the Holy See was the subject of international law capable of assuming binding obligations on behalf of the Catholic Church. The Holy See, in sum, is a subject of international law equal to states, even if it does not possess the traditional elements of statehood. It is the same subject as the Holy See before 1808, the same subject as that which existed between the fall of Napoleon and 1870, and the same subject as that which existed between 1870 and 1929. Changes in territory and population have not affected its

40. See Prosecutor v. Bagosora, Case No. ICTR-98-41-T, Decision on Defence

Motion to Obtain Cooperation from the Vatican Pursuant to Article 28 (Trial Chamber I, I.C.T.R. 2004) (treating the Vatican as a sovereign state, over which the Charter of the United Nations, and the Statute of the Tribunal, does not—may not—impose

obligations). Although the reference in the decision is to the Vatican state, the request regarded cooperation by the “former Ambassador of the Holy See to Rwanda,” and it is apparent that “Holy See” and “Vatican” are used by the Trial Chamber as interchangeable terms. For the text of the Decision, see http://www.ictr.org (last visited Nov. 2004).

41. This seems the case of treaties having specific territorial application. See

HENKIN ET AL., supra note 1, at 299.

42. Fundamental Agreement Between the Holy See and the State of Israel,

Dec. 30, 1993, Vatican-Isr., 33 I.L.M. 153 (1994).

43. Id. at 154.

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nature as a sovereign subject. 44 Currently, the expression “Holy See” is used to define the government of the Vatican. Should the Holy See once again lose its territorial basis, however, it would still remain a subject of international law in its own right.

2. The Boers

One case of an entity subject to international law that moved from one territory to anotherand therefore cannot be said to have possessed “a stable territory”is exemplified by the “Great Trek” of the Boers in the first half of the nineteenth century. 45 The Cape of Good Hope was settled by the Dutch in 1652 and, with some minor interruptions stemming from colonial conflicts, remained a Dutch dependency until 1806. 46 Movements of Boer farmers from the Dutch Colony of the Cape to the North were common throughout the eighteenth and the beginning of the nineteenth centuries. It was, however, after the cession of the colony to Great Britain in 1814, and especially after the abolition of slavery in 1833, that almost the entire African-Dutch community moved to form the Free State of Orange, 47 the African-Dutch Republic, 48 and the Colony of Natal. 49 Those settlers, according to the traditional view, would not have been able unilaterally to discard their bond of allegiance to the British Crown in accordance with domestic (British) rules. 50 Had this been a simple occupation of terra nullius, the new territory would automatically have become part of the British Empire. But the emigrants intended to reestablish their colony on an independent basis, with the

44. A similar analysis applies to the less famous case of the Sovereign Order of

Malta. See MALCOLM N. SHAW, INTERNATIONAL LAW 171 (4th ed. 1997). For example, the Order of Malta was invited to the Geneva Conference of 1929, convened under the auspices of the Red Cross on the prisoners of war; it was not invited to the Universal Postal Union Conference of 1937. See PAUL GUGGENHEIM, RÉPERTOIRE SUISSE DE

DOCUMENTATION CONCERNANT LA PRACTIQUE DE LA

DROIT INTERNATIONAL PUBLIC:

CONFÉDÉRATION EN MATIÈRE DE DROIT INTERNATIONAL PUBLIC, 1914-1939 498-99

(1975); see also CASES AND MATERIALS ON INTERNATIONAL LAW 152 (Martin Dixon & Robert McCorquodale eds., 4th ed. 2003) (quoting an Italian judgment on the status of the Order of Malta).

45. See J. Westlake, L’Angleterre et la République Sud-Africaine, 28 REVUE DE

DROIT INTERNATIONAL ET DE LÉGISLATION COMPARÉE 268, 269-72 (1896).

46. JOHN DUGARD, INTERNATIONAL LAW – A SOUTH AFRICAN PERSPECTIVE 14-

15 (2000).

47. See Westlake, supra note 45 (noting that this entity maintained its external

independence until 1881 when the Pretoria Convention made it a British protectorate).

48. Later, this entity became the Republic of South Africa and was annexed by

Great Britain as Transvaal in 1877. Id.; see also JOHN NIXON, THE COMPLETE STORY

OF THE TRANSVAAL 12-21 (1885).

49. Natal was annexed by the British government at the Cape in 1843. NIXON,

supra note 48, at 19. See generally M. J. De Louter, L’annexion du Transvaal, 13

REVUE DE DROIT INTERNATIONAL ET DE LÉGISLATION COMPARÉE 194 (1881).

50. See VERZIJL, supra note 28, at 65.

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privileges and liberties the new British sovereign denied them (including that of being a slave-owner). Leaving aside any moral judgment on the Boers’ aims, 51 there is no doubt that other countries recognized these entities as subjects of international law because they effectively discharged state functions in their respective territories until their final annexation by Great Britain. In fact, the domination by the Netherlands through its East India Company was a nominal one, allowing for a high degree of de facto self-government. 52 When British rule replaced the nominal Dutch authority, it was simply not recognized by the local ruling class of Dutch origin. 53 The manifesto describing the intentions of the emigrants, drafted in 1837, is clear in this respect, stating that “we are resolved, wherever we go, that we will uphold the first principles of liberty” and that “we quit this colony under the full assurance that the English Government has nothing more to require of us, and will allow us to govern ourselves without interferences in the future.” 54 The Boers believed that they “were an oppressed nation under foreign supremacy.” 55 As such, they moved to another territory to retain their own identity. The British government recognized that the Transvaal was constituted by the “emigrant farmers beyond the Vaal river.” 56 In this case, the nation (or rather, the white governing elite) moved with its property (including slaves) to an altogether different territory, maintaining an identity recognized by Great Britain and other nations. The governmentwith its legal system and constitutive rulesand the population changed location, but both kept their identity. In response to this reasoning, it might be said that because the Boers were colonists under Dutch rule, they could not be an entity under international law before the Great Trek; therefore, it is impossible to define their migration as a modification of the territory of a subject of international law. The better view, however, is that Dutch rule was more formal than effective and that subsequent history demonstrates that the Boers left in order to maintain the integrity of their traditions and institutions. Moreover, when the Boer entities formed after the Great Trek ahead of the still-advancing British presence, they began to withdraw beyond the river Vaal. In

51. See Tamara Rice Lave, Note, A Nation at Prayer, a Nation in Hate:

Apartheid in South Africa, 30 STAN. J. INTL L. 483, 486-91 (1994) (analyzing the roots

of South African apartheid policies).

52. See NIXON, supra note 48, at 14.

53. Id. The Dutch-speaking group in South Africa actually also includes

descendants of French Huguenots and Germans. See FRANK CANA, SOUTH AFRICA

FROM THE GREAT TREK TO THE UNION 5-23 (1909); T.R.H. DAVENPORT, SOUTH AFRICA:

A MODERN HISTORY 6-8 (4th ed. 1991).

54. DAVENPORT, supra note 53, at 16-17.

55. Id. at 18.

56. See NIXON, supra note 48, at 339-41.

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this instance, a real migration of an internationally constituted entity, exercising effective authority over its subjects, took place. 57 The foregoing case shows that “the total change of territory by a people which, under the same government and law, settles in a different territory, leaves the identity of the state or of the subject intact.” 58

3. Czechoslovakia

Czechoslovakia, as a subject of international law, was born without any territorial basis and practically without a population, but it developed into a state without losing its identity. The Czechoslovak Republic had its genesis in the Czechoslovak National Council that acted, during the First World War, as a representative of the Czechoslovak nation. 59 Under the Council, a 30,000-strong Czechoslovak army fought the Great War against the Austrian Empire and its allies on different fronts. 60 These two entities were considered by the Allied Powers (Entente) as the legitimate representatives of the Czechoslovak people. The British Foreign Office heavily financed the recruiting operations of this army; it stated that “[s]ince the beginning of the war, the Czecho-Slovak nation has resisted the common enemy by

every means in its

In consideration of its efforts to achieve

independence Great Britain regards the Czecho-Slovaks as an allied nation.” 61 From October 24, 1917 onward, Italy recognized the Council as a Czechoslovak government well before any authority on the territory of Czechoslovakia had been secured. 62 On April 21, 1918, Italy and the National Council signed a Convention mentioning the existence of a sole and autonomous Czechoslovak army under the authority of the National Council; 63 on June 30, 1918, a Convention between Italy and the National Council envisaged the direct execution of the laws passed by the latter within the Italian kingdom and stated that the Czech military was under the jurisdiction of

57. For an analysis of this issue, see DONATO DONATI, STATO E TERRITORIO 33-

34 (1924). The author also provides an interesting study of the theoretical qualifications of “nomadic States.” Id. at 28-31.

58. Joseph L. Kunz, Identity of States in International Law, 49 AM. J. INTL L.

68, 72 (1955).

59. See JOSEF KALVODA, THE GENESIS OF CZECHOSLOVAKIA 180-206 (1996).

60. Id.

61. Diplomatic Note of Aug. 9, 1918, in 1 GREAT BRITAIN AND THE LAW OF

NATIONS 236 (Herbert Smith ed., 1932). Note the sheer difference with the declaration on the Polish National Committee in London of October 15, 1917, which only stated

“His Majesty’s Government are very willing to recognise this official Polish organisation.” Id. at 235.

62. KALVODA, supra note 59, at 259.

63. See MIELE, supra note 32, at 54.

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Czech court-martials. 64 A Czechoslovak government in exile was established in Paris only later 65 and recognized by several nations, including France, Serbia, Belgium, Greece, and Italy. 66 The expressions of recognition of the National Council and of the government in exile could be construed as the expression of the political will to recognize an entity representing one of the nationalities within the Austro-Hungarian Empire fighting against the empire itselfthat is, a politically motivated recognition to a military group as a way of persuading it to join the war effort. But when one considers these recognitions together with events unfolding after the end of the Great War, another explanation appears more likely. The peace treaties of Saint Germain-en-Laye (with Austria) 67 and Trianon (with Hungary) 68 list Czechoslovakia among the winning “Allied and Associated Powers.” To be among the victorious states, the subject called “Czechoslovakia” must have already been in existence before the end of the war and the dissolution of the Austro- Hungarian Empire. But there is no doubt that, at least before November 3, 1918, the date of the armistice of Villa Giusti between the Empire and Italy (the last official act of Emperor Karl), 69 neither the National Committee nor the “government in exile” enjoyed effective control over any portion of the territory of what would become Czechoslovakia. The only logical explanation is that a subject of international law (an ally of the Entente) existed before the dissolution of the Empire and was able to engage in international relations with other subjects; when the war ended, that same subject was finally able to acquire a territorial basis. The late acquisition of territory by this (already existing) international subject, however, did not modify its nature and its “essence,” for it was considered the same subject which had fought as an “Allied and Associated Power.” 70 No other national group

64. Supplementary Convention between the Italian Government and the

Czechoslovak National Council of June 30, 1918, reprinted in MIELE, supra note 32, at

106-07.

65.

On these events, see Antoine Hobza, La République Tchécoslovaque et le

droit international, 29 REVUE GÉNÉRALE DE DROIT INTERNATIONAL PUBLIC 385-409

(1922).

66.

TALMON, supra note 13, at 287.

67.

Treaty of Peace between the Allied and Associated Powers and Austria,

Sept. 10, 1919, Consol. T.S. 8, 4 U.K.T.S. 103, reprinted in 14 AM. J. INTL L. 1 (Supp.

1920).

68. Treaty of Peace between the Allied and Associated Powers and Hungary,

and Protocol and Declaration, June 4, 1920, reprinted in 15 AM. J. INTL L. 1 (Supp.

1921).

69. See KRYSTYNA MAREK, IDENTITY AND CONTINUITY OF STATES IN PUBLIC

INTERNATIONAL LAW 203 (2d ed. 1968).

70. According to the High Administrative Tribunal of Czechoslovakia, and

therefore on the basis of that country’s domestic legal order, Czechoslovakia was in

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or liberation committee was recognized among the “Allied and Associated Powers” in the same treaties. In this case, a subject of international law, par inter pares, existed before it was able to exercise effective authority over any territory; when it did acquire this ability, it continued to exist according to its new situation without any essential modification of its personality and identity. The last three cases suggest that entities without a stable territory or population (or both) are not necessarily different from states. In fact, all these subjects retained their own identity as subjects of international law, with the rights and duties flowing from this position, both in times when they enjoyed effective control over a territory and in times when they were forced by circumstances to survive on some other state’s territory—as if in a sort of “artificial lung” that kept them alive (Holy See, Sovereign Order of Malta) 71 or even assisted them at their birth (Czechoslovakia). In cases of what at the time was regarded as occupation of terra nullius (Boers), the transfer of the organized population to an altogether new territory did not alter the personality of the subject.

4. Spain and Turkey

In addition to the above-mentioned cases, in which subjects of international law regarded as equal to states (or, in certain cases, regarded as states proper) do not possess all the attributes set out in the classical definition of the Restatement, there are cases of subjectsinsurgents or belligerents 72 developing into states or being attributed rights and duties typical of states. There are different views on the legal evaluation of the events surrounding the Spanish Civil War, dating from July 17, 1936 to March 28, 1939. 73 According to the standard account, the lawfully elected Republican government was replaced by the Nationalist one at least by March 28, 1939, when troops led by General Franco

existence since October 28, 1918, the date of the proclamation of independence by the National Committee, and therefore before the dissolution of the Empire (November 1918) and the peace treaties recognizing its sovereignty (signed in 1919 and 1920). See Establishment of Czechoslovak State, 3 I.L.R. 13, 14 (Sup. Admin. Ct. of Czech Rep. 1925). This judgment does not exclude the possibility that the subject of international

law existed even before October 28, 1918, although without the forms typical of a state.

71. For this image, see Arangio-Ruiz, On the Nature of the International

Personality of the Holy See, supra note 30, at 365.

72. See Eibe Riedel, Recognition of Belligerency and Recognition of Insurgency,

in 4 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 167-73 (Rudolf Bernhardt ed., 1997) (providing definitions of insurgency and belligerency); see also BROWNLIE, supra note 1, at 63 (noting that insurgents and belligerents are both considered subjects entitled to enter into legal relations on the international plane); SHAW, supra note 9, at

219-20, 1040-41 (observing that the concepts of insurgency and belligerency are not easily distinguishable).

73. See generally James W. Garner, Questions of International Law in the

Spanish Civil War, 31 AM. J. INTL L. 66 (1937).

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entered Madrid. At that point (although the exact time is subject to debate), Nationalist insurgents somehow became an organ of the Spanish state, which did not cease to exist. The Republican government, representing “Spain” until March 27, is said to have disappeared, leaving the territory and population (of Spain) under the rule of Franco. How exactly an entity (the insurgent community under Franco) had become an organ of another entity (Spain, the state it was fighting until March 27) is a mystery. How the Republican government of Spain, being an essential element of the state of Spain according to the definition of “state” provided for in the Restatement, could disappear but, at the same time, “leave in inheritance” the “state of Spain” to the next government is an even greater mystery. If, however, we focus our attention on effective authoritiesgovernmentsrather than on “states,” the matter can be interpreted in an altogether different light. As time passed and the Nationalist government gained ground through force (aided by Italian and German interventions), its sphere of effective jurisdiction expanded with every victory in the field; conversely, the Republican government (Spain) saw its authority diminished as far as control over territory was concerned. These entities were not qualitatively different one from the other. For this reason, the international community saw them as belligerents, qualitatively on the same level, and consequently applied the rules of warfare and neutrality. 74 Both governments ruled their respective territory with effective authority and engaged in international intercourse. Many of the diplomats of “Spain” before 1936 joined the Franco regime and became “ministers” or chargés d’affaires to other countries. 75 An example of this is provided by the disputes regarding the gold of the Spanish National Bank. In 1931, the Spanish National Bank had deposited a large amount of gold with the French National Bank. This gold was requested, after the beginning of the civil war, both by the Nationalist and by the Republican governments, each of which had, by that time, its own “Spanish National Bank.” Each government deemed itself entitled to the whole sum as the representative of “Spain.” The problem was that, according to French or international law, there was no rule to decide which entity was

74. See also ROBERT HODGSON, SPAIN RESURGENT 74-99 (1953). Hodgson’s

analysis of the policy of non-intervention in the Spanish Civil War, especially by Great Britain, albeit appallingly biased in favor of the Franco regime, provides a large

amount of useful information on the general attitude of diplomatic circles toward the two belligerents.

75. See MARINA CASANOVA, LA DIPLOMACIA ESPAÑOLA DURANTE LA GUERRA CIVIL

241-53 (1996) (providing a list of diplomats who joined the Franco regime). Casanova’s book is extremely interesting especially with respect to the “parallel” diplomacy that ensued after the beginning of the Civil War and the necessity of the Republic to acquire weapons in the battle for its own survival. See id. at 27-35, 161-93.

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“Spain”; the French judiciary therefore refused to take a stand on the issue. 76 The decision was finally taken by the French government, on a purely political level, to recognize the Franco regime on February 27, 1939. 77 Similarly, in June 1938, the British Government expressed its view that

His Majesty’s Government recognizes the Nationalist Government as a

Government which at present exercises de facto administrative control over the larger portion of Spain [and] effective administrative control

[T]he Nationalist

Government is not a Government subordinate to any other Government

in Spain. 78

over all the Basque Provinces of

Courts generally abided by this view, stating that there were two sovereigns in Spain, albeit one de facto (Nationalist) and one de jure (Republican); no substantial difference seemed to exist on the legal level between the two characterizations. In an action before a Norwegian court by a chargé d’affaires of the Nationalist government to hold and dispose of the property of the former ambassador to Norway, the plaintiff claimed that the Court should have decided “for itself whether or not the necessary conditions have been fulfilled in order that that Government must be recognized as exercising a lawful authority over Spain or a part thereof.” 79 The District Court, however, referred to the executive branch of Norway and declared that “[a]s long as there exists a Spanish State and Government recognized by the Norwegian authorities, the right to possess and

dispose of effects of such State

belongs to the representative of

such State.” The Supreme Court followed this reasoning. 80 Although

76. See Georges Scelle, La guerre civile espagnole et le droit de gens – L’or de la

banque d’Espagne, 45 REVUE GÉNÉRALE DE DROIT INTERNATIONAL PUBLIC 649 (1938).

77. MIELE, supra note 32, at 20-21.

78. In re Arantzazu Mendi, [1939] A.C. 256 (H.L. 1939) reprinted in 9 I.L.R. 60,

61-62. The House of Lords unanimously interpreted these statements as implying that the Nationalist government, “for the purposes of international law,” was “a foreign sovereign State.” The extension of the two states’ territories, and their modifications, was regarded as immaterial. See id. at 66. In addition, the English Court of Appeals held in Banco de Bilbao v. Sancha and Rey, 9 I.L.R. 75, 77 (1987), that the decrees of the de jure government had no effect in the territory of the de facto one in. More recently, this approach was followed by the Queen’s Bench Division (Commercial Court) in Sierra Leone Telecommunications Co. Ltd. v. Barclays Bank, [1998] 2 All E.R. 821, 822 (Q.B. 1998), in which the Court sided with the U.K. government and refused to recognize the military junta in control of Freetown, the capital of Sierra Leone, as the “Government of Sierra Leone.” Interestingly, the Special Court for Sierra Leone— set up jointly by the U.N. and the Sierra Leone Government for crimes committed during the civil war in that country after November 30, 1996—rested on that very ruling to find that it had jurisdiction in Prosecutor v. Callon, No. SCSL-2004-14- AR72E, ¶¶ 72-79 (decision on constitutionality and lack of jurisdiction of March 13,

2004), available at http://www.sc-sl.org (last visited Nov. 2004).

79. See Campuzano v. Spanish Government, 11 I.L.R. 68, 69 (Sup. Ct. of

Norway 1938).

80. Id. at 71.

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this conclusion seems at odds with the previously cited French one, it is actually based on the same logic—i.e., that the executive is allowed to make decisions in this area of international relations because there is no strict legal provision a tribunal can apply to decide which government represents a certain state during a civil warunless one of the two governments intends not to gain ultimate control over the whole territory, but merely to secede. 81 German courts predictably took the opposite view—that the Nationalist government was the de jure one, while the Republic should be regarded as an insurgent, exercising de facto authority on Catalonia and other regions. 82 Recognition, too, could not solve the issue decisively. The different examples of competing recognitions by a different group of states only show that recognition is merely a political choice, with no effective bearing on the qualification of an entity as a subject of international law. In fact, the Republican government-in-exile was recognized as the only legitimate Spanish government by Yugoslavia and Mexico until March 1977, when democracy was restored to the country. 83 A case analogous to Spain, contrary to the opinion of most scholars, is that of the Ottoman Empire and the Turkish Republic after the First World War, which involved two subjects of international law confronting each other. These were the Ottoman Empire, which had declared and lost the war alongside Germany and the Austro-Hungarian Empire, and the Kemalist Republic, which was born out of a group of nationalist insurgents to become present-day Turkey. 84 Domestic decisions related to recognition of other governments are not able to deny international status to the new entity seeking power and recognition. They merely intend to reaffirm that one subject of international law wishes to keep conducting business as usual with the other subjectbe it the Republican Government of Spain, the Ottoman Empire, or the Government of Sierra Leone. Some countries leave this appreciation entirely in the hands of the executive branch of the government, while others allow courts to make this determination. 85

81. See discussion infra Part II.C.5.

82. See In re Spanish Republican Government (Security for Costs), 9 I.L.R. 73

(Ct. App. of Germany 1938).

83. See TALMON, supra note 13, at 298.

84. See Enrico Zamuner, Le Rapport entre Empire ottoman et République

turque face au droit international, 6 J. HIST. INTL L. 209 (2004) (detailing the

underlying history of the relevant events and providing a demonstration in law of the existence of two different subjects in that instance).

85. BROWNLIE, supra note 1, at 95-96.

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5. The Confederate States of America

Similar to the examples above is the case of insurgents or belligerents not succeeding in their efforts, as long as their control over (a portion of) the territory is effective and they are able to engage in affairs both inside and outside their borders. The Confederacy created by those states seceding from the United States of America in 1861 is a prime example. In that case, seven seceding states created a Constitution to form a new subject. The secession and all following acts were based on the premise that the states composing the Union were “Free and Independent States [with] full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” 86 The position of the Confederates was that the U.S. Constitution always speaks of states, though united through a compact, as separate entities. 87 During the years of war, the Confederate States of America (CSA) strove to reach the political objective of official recognition by other countries—notably France, Great Britain, and Mexico. 88 The fact that the CSA never succeeded in reaching this aim did not preclude it 89 from engaging in international interaction. 90 The only

86. THE DECLARATION OF INDEPENDENCE (U.S. 1776), available at

http://www.ushistory.org/declaration/document. For a discussion of this topic from a Confederate perspective, see JEFFERSON DAVIS, THE RISE AND FALL OF THE

CONFEDERATE GOVERNMENT 70-73, 126-30 (1881).

87. See, e.g., U.S. CONST. art. I, § 9, cl. 8 (“no Person holding any Office of Profit

or Trust under them”) (emphasis added); U.S. CONST. art. III, § 2 (“[t]he judicial Power

shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority”) (emphasis added); U.S. CONST. art. III, § 3, cl. 1 (“[t]reason against the United States, shall consist only in levying War against them”) (emphasis added). It is noted in U.S. Supreme Court decisions that there is no consistency concerning whether the United States of America should be addressed in the singular or in the plural.

Compare Heckers v. Fowlers, 69 U.S. 123, 128 (1864) (“[w]here the United States are plaintiffs”), and In re Henderson’s Distilled Spirits, 81 U.S. 44, 58 (1871) (“the United States are entitled to judgement”), and Dow v. Johnson, 100 U.S. 158, 175 (1879) (“the United States are plaintiffs or petitioners”), with Davidson Bros. Marble Co. v. United States, 213 U.S. 10, 17 (1909) (“a suit in which the United States is plaintiff”), and United States v. Shaw, 60 S. Ct. 659, 663 (1940) (“when the United States is plaintiff”). Common English language has accepted that the United States “is,” although other languages have chosen a different path. Among others, German, French, Italian, Greek all refer to the “Unites States of America” with plural verbal forms.

88. See generally FRANK LAWRENCE OWSELY, KING COTTON DIPLOMACY

FOREIGN RELATIONS OF THE CONFEDERATE STATES OF AMERICA 318-577 (1931).

89. Although the confederated states saw themselves as a plurality of sovereign

subjects, I am using the singular form to address them because, in its international

relations, the Confederacy was clearly deemed by its own participants as one entity.

90. A compelling case in this respect is made by the historical analysis in

FREDERIK GRAHAM WINN, A STUDY OF THE DIPLOMATIC RELATIONS BETWEEN FRANCE AND THE CONFEDERATE STATES OF AMERICA 6-9, 30-33, 95-98 (1958).

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reason recognition was not granted was fear of U.S. reprisal. 91 If the view is accepted that recognition is not constitutive of international subjects, the lack of recognition does not as such have any bearing on the conclusion reached with respect to the international personality of the CSA. In this respect, U.S. Secretary of State Seward instructed the U.S. ambassador to London that should Great Britain recognize the Confederacy, he was to communicate to the British government “promptly and without reserve that all negotiations for treaties of whatever kind between the two governments will be discontinued.” 92 According to this statement, the United States was not going to act through a countermeasure, which would have been allowed under international law had the act of recognition of the CSA been considered a breach of international law, but through a mere act of retortion, aimed at adversely affecting British interests but not British rights under international law. 93 Thus, even the United States did not consider recognition of the CSA illegal under international law, but just an act of overt unfriendliness toward it. The most important countries of the time declared themselves neutral in the war, thus accepting that both belligerents were on an equal footing and had the same rights and duties regarding the laws of warfare. 94 The declaration of neutrality by Great Britain 95 is especially important, since it gave rise to a series of legal disputes between Great Britain and the United States; most of these disputes (the so-called Alabama claims) were later to be solved by a joint Tribunal of Arbitration. 96 The United States wished to portray the Confederates as rebels and the war as a mere domestic disturbance. According to this line of reasoning, the U.S. government never officially declared war, never

91. See 1 JOHN BASSETT MOORE, A DIGEST OF INTERNATIONAL LAW 103-05

(1906) (reprinting the Circulars of Mr. Black (Feb. 28, 1861) and Mr. Seward (Mar. 9, 1861), U.S. Secretaries of State, addressed to U.S. diplomatic envoys abroad). The

circulars state that recognition of the Confederacy would amount to disturbance of the “friendly relations, diplomatic and commercial, now existing between those powers and the United States.” Id. No mention of breaches of international obligation is made.

92. Id. at 106.

93. See Peter Malanczuk, Countermeasures and Self-Defence as Circumstances

Precluding Wrongfulness in the International Law Commission's Draft Articles on State

Responsibility, in UNITED NATIONS CODIFICATION OF STATE RESPONSIBILITY 197, 207

(Marina Spinedi & Bruno Simma eds., 1987) (writing that “retortion is an unfriendly act against another State with the object to persuade that State to end its harmful conduct”).

94.

See 10 VERZIJL, supra note 28, at 115.

95.

See

ARNOLD DUNCAN MCNAIR, INTERNATIONAL LAW OPINIONS 146-47

(1956).

96.

For the history of the arbitration, see JOHN BASSETT MOORE, HISTORY AND

DIGEST OF THE INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN

A PARTY 496-97 (1898); 10 VERZIJL, supra note 28, at 118.

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recognized the Confederacy as a sovereign state, and deemed the soldiers fighting under Confederate colors traitors or pirates when assaulting U.S. vessels. This position, however, belied the facts. President Lincoln ordered measures in the manner of a blockade 97 to counter the CSA’s bid for survival. U.S. courts tried Confederate soldiers accused of treason or piracy but often failed to enter convictions. 98 The U.S. Supreme Court recognized that in determining whether the United States could condemn the property of rebels, the right to condemn enemy property during war was an accepted practice under international law. 99 The U.S. Supreme Court also acknowledged that promissory notes in Confederate money were enforceable in U.S. courts after the war 100 and that investments in Confederate bonds were lawful. 101 The Confederacy was a subject of international law with all the rights and duties pertaining to a state. 102 Although it was not officially recognized as a state, it acted as the paramount authority over the territories it held, and the population thereon; it engaged in international interaction with other subjects; it was considered a lawful belligerent party. “The insurgent community therefore possessed a government established as formally as is possible in a society the separate political existence of which is not acknowledged.” 103 Judge Grier, writing for the majority in the Prize Cases remarked that “[this] is no loose, unorganized insurrection, having no defined boundary or possession. It has a boundary marked by lines of bayonets, and which can be crossed only by forcesouth of

97. See the discussion on the meaning of this formulation in the judgment and

dissenting opinion of The Prize Cases, 67 U.S. 635, 665-71, 682-85 (1862).

98. See Susan Poser & Elizabeth Varon, United States v. Steinmetz: The Legal

Legacy of the Civil War, Revisited, 46 ALA. L. REV. 725, 744-50 (1995).

99. Miller v. United States, 78 U.S. 268, 306-07 (1870). No need to refer to

international law would have existed had the Supreme Court considered the matter a mere question of U.S. domestic law.

100. Thorington v. Smith, 75 U.S. 1 (1868), cited in Aboitiz & Co. v. Prince, 99 F.

Supp. 602 (D.C. Utah 1951) (applying this principle to an armed conflict of international character).

101. Baldy v. Hunter, 171 U.S. 388, 400 (1898).

102. See also Mauran v. Alliance Ins. Co., 73 U.S. 1, 14 (1867). Justice Nelson

wrote that “the so-called Confederate States were in the possession of many of the highest attributes of government, sufficiently so to be regarded as the ruling or supreme

power of the

[w]hen [a rebellion] has become a recognised war those who are engaged in it are to be regarded as enemies. And they are not the less such because they are also rebels. They are equally well designated as rebels or enemies. Regarded as descriptio personarum, the words “rebels” and “enemies,” in such a state of things, are synonymous.

Miller, 78 U.S. at 309.

103. WILLIAM EDWARD HALL, A TREATISE ON INTERNATIONAL LAW 44 (1924).

.” Id. (emphasis added). In fact,

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this line is enemy’s territory, because it is held in possession by an organized, hostile and belligerent power.” 104 This is not to say that the secession by the Confederate states was legal under the U.S. legal system 105 or under international law at the time, nor that it might be considered lawful under current understandings of the self-determination principles enshrined in the U.N. Charter and supporting documents. In particular, the position of the U.S. government and Supreme Courtthat, according to the U.S. Constitution, the seceding states had never actually secededhas no direct relation to the question of the international personality of the Confederacy. 106 The issue of the existence of a separate international subject has no direct relation with the legality of its conduct under domestic or international law; on the contrary, the analysis of its possibly unlawful acts presupposes its existence as a distinct entity. If the Confederacy had not been a subject of international law, no possible discourse on violations of international law by that entity would be conceivable. As stated in the preceding pages, the creation and death of states in the sense of international law is a question of factand, de facto, the CSA acted as the governing body over a defined territory for over four years, just as the original thirteen colonies had done, more successfully, after they effectively rejected the lawfully constituted government of the British Crown. 107

104. See The Prize Cases, 67 U.S. 635, 673-74 (1862).

105. The situation, according to U.S. domestic law, was in fact no different from

the one of the thirteen colonies in their struggle against British rule under (British) constitutional law or, for that matter, of the seceding states of Slovenia, Croatia,

Bosnia and Herzegovina, and Macedonia according to the constitutional law of the former Yugoslavia. In particular, see the arguments suggesting the illegality of the secession of the Yugoslav republics in the early 1990s, according to Yugoslav

constitutional law, by ROBERT M. HAYDEN, BLUEPRINTS FOR A HOUSE DIVIDED – THE CONSTITUTIONAL LOGIC OF THE YUGOSLAV CONFLICTS 30-52 (2002).

106. See Keith v. Clark, 97 U.S. 454, 461 (1878) (stating that “the State [of

Tennessee] remained a State of the Union. She never escaped the obligations of that

Constitution, though for a while she may have evaded their enforcement.”)

107. EDWARD S. MORGAN, THE BIRTH OF THE REPUBLIC 1763-1789 58-64 (1956).

King George III, in his speech before the British Parliament on October 26, 1775, found that “[rebels in America] have raised Troops, and are collecting a Naval Force; they have seized the public Revenue, and assumed to themselves Legislative, Executive, and Judicial Powers, which they already exercise in the most arbitrary Manner over the Persons and Properties of their Fellow Subjects.” See Merrill Jensen, American Colonial Documents to 1776, in 9 ENGLISH HISTORICAL DOCUMENTS 851 (David C. Douglas ed., 1955). This declaration is a recognition of a state of fact existing in the thirteen colonies, against which the British government had to take extraordinary steps; the situation had reached the stage of an insurgency. The fact that the thirteen colonies had become de facto independent at least during 1775 or 1776 was later confirmed by the U.S. Supreme Court in Ware v. Hylton, in which the Court stated:

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Evidence of the state-like status of the Confederacy is also provided by recent U.S. judicial rulings that considered it a predecessor of the United States. 108 In the Steinmetz case, the United States accepted that rights and duties flowed from the CSA as they would have from a conquered state and espoused the view that the United States is a successor state in respect of the Confederacy; therefore, the CSA must have been a subject of international law entitled to wage war, to own military property, and to be a predecessor with respect to public property.

6. China and Taiwan

The case of Taiwan, also known as the Republic of China (ROC), demonstrates the uncertainties of the Restatement’s definition of “state”; the Comment appended to paragraph 201 and the Reporters’ Notes indeed make reference to Taiwan and its status under international law. 109 A brief historical analysis of the events leading to the present situation may help shed some light on the actual situation. In 1683, the Ch’ing dynasty ruling mainland China annexed the island to its empire, incorporating it into the province of Fukien. 110 In 1886 the island of Formosa (Taiwan) formally became a province of

This abolition of the Old Government, and this establishment of a new one was the highest act of power, that any people can exercise. From the moment the people of Virginia exercised this power, all dependence on, and connection with Great Britain absolutely and forever ceased; and no formal declaration of Independence was

3 U.S. 199, 223 (1797).

108. United States v. Steinmetz, 973 F.2d 212 (3d Cir. 1992), cert. denied, 507

U.S. 984 (1993). In fact, a program of military naval building was envisaged by the Confederacy among the actions taken to wage the war. Since the blockade declared and effectively put in place by the U.S. prevented the CSA from building its own warships in local ports, the Confederate government took steps to have the ships built in European ports as commercial vessels and then to outfit them on the high seas. One such ship, the Alabama, was sunk in 1864 by the U.S. Navy; its bell was recovered some seventy years later and ended up in the shop of an antiques’ dealer, Mr. Steinmetz. The U.S. government successfully claimed title on the premise that the U.S. is the successor of the CSA under international law by relying on United States v. Huckabee, in which the Supreme Court stated:

[I]f the nation is entirely subdued, or in case it be destroyed and ceases to exist [the rights of the conqueror] are no longer limited to mere occupation of what he has taken into his actual possession, but they extend to all the property and rights of the conquered

83 U.S. 414, 434-45 (1873) (emphasis added).

109. RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 201, cmt. F, reporters’ n.8

(1987).

110. Jonathan I. Charney & J.R.V. Prescott, Resolving Cross-Strait Relations

between China and Taiwan, 94 AM. J. INTL L. 453, 454-56 (2000).

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China. 111 After Japan defeated China in 1895, Taiwan was ceded to Japan “in perpetuity” under the Treaty of Shimonoseki 112 and remained under Japanese sovereignty until the Second World War. The Chinese imperial government was overthrown in 1911; the new (republican) government was recognized by the United States, Japan, Russia, Great Britain, and other states in the following years. 113 But its legitimacy in parts of the territory purportedly under its authority was challenged by a number of local warlords well into the 1920s. 114 During the Second World War, both the Cairo Declaration of 1943 115 and the Potsdam Declaration of 1945 116 stated that Chinese sovereignty should be restored over all the territories taken by Japan, including Taiwan. The Chinese government, a founding member of the United Nations, was therefore recognized as the same international subject that had relinquished its authority over Taiwan in 1895. With Japan’s surrender in 1945, 117 the Supreme Allied Command invited Chinese armed forces to Taiwan with the aim of enabling the Chinese government to regain possession of the island. Chinese administration attempted to assume control on October 3, 1945 as a military government under an Administrator-General and Concurrently Supreme Commander for Taiwan Province. Between September 2, 1945 118 and October 3, 1945, the island was neither governed by Japan nor effectively controlled by China. 119 After

111. SIMONG LONG, TAIWAN: CHINAS LAST FRONTIER 1-23 (1991).

112. Treaty of Peace, Apr. 17, 1895, China-Japan, 181 Consol. T. S. 217.

113. See

PEOPLES CHINA AND

INTERNATIONAL LAW 207 (1974).

114. See generally Tarcisio Gazzini, Some International Legal Aspects of the

Chinese Civil War (1927-1949), 1 J. ARMED CONFLICT L. 141 (1996) (providing a brief and clear account of the Chinese Civil War and its consequences on the identity of the

ROC).

115. Final Text of the Communiqué, Dec. 1, 1943, 3 Bevans 858, 1943 FOREIGN

RELATIONS OF THE UNITED STATES, THE CONFERENCES AT CAIRO AND

TEHRAN 448.

116. Proclamation by the Heads of Governments, United States, China and

United Kingdom, July 26, ¶ 8, 3 Bevans 1204, 1945 FOREIGN RELATIONS OF THE UNITED STATES, 2 THE CONFERENCE OF BERLIN (THE POTSDAM

CONFERENCE) 1474.

117. Surrender by Japan, Terms Between the United States of America and the

Other Allied Powers and Japan, Sept. 2, 1945, 59 Stat. 1733, E. A. S. No. 493.

118. September 2, 1945 was the date of the unconditional surrender of Japan to

the Allied forces. The Act of surrender contained the obligation “for the Emperor, the Japanese Government and their successors to carry out the provisions of the Potsdam Declaration in good faith.” Id. This instrument shows that the Potsdam Declaration

provisions regarding Japan were considered legally binding on the parties to the Act of Surrender (including, among others, the United States, China, and Japan).

JEROME ALAN COHEN & HUNG DAH CHIU,

119. The Act of Surrender of Japanese Forces in China reads:

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October 3, 1945, some authority on the island was vested in the Chinese government under the Guomindang party, although it is by no means clear whether this government was sovereign or, rather, was acting under the mandate of the Allied Supreme Command. 120 The matter is complicated by the fact that, at least by 1949, two different governments openly struggled to be recognized as the Chinese government. 121 This fact, together with the political clout created by the confrontation between the communist and the capitalist “fields” since the late 1940s, has puzzled international scholars, with a few exceptions, 122 up to the present day. The debate on this issue has generally concerned the right (or duty) to recognize each of the two governments, as well as the diplomatic, political, and economic relations between members of the international community and each of the two subjects. 123 The debate is also tainted by strong political considerations, and it does not provide a clear legal answer on the identity of either subject. 124

The Emperor of Japan, the Japanese government and the Japanese Imperial General Headquarters, having recognized the complete military defeat of the Japanese military forces by the Allied forces and having surrendered unconditionally to the Supreme Commander for the Allied powers, having directed by his general order no.1 that the senior commanders and all ground, sea, air and auxiliary forces within China excluding Manchuria, Formosa and French Indo-China north of 16 degrees north latitude shall surrender to Generalissimo Chiang

Act of Surrender of Japanese Forces in China, Sept. 9, 1945, available at

http://www.taiwandocuments.org/japansurrender.htm (last visited Nov. 2004).

120. General Chiang Kai-shek recognized that he was to accept the surrender of

all Japanese forces within China (excluding Manchuria), Formosa, and French Indo- China north of 16 degrees north latitude in compliance with the General Order issued by the President of the United States on behalf of the Allied Powers to General MacArthur, and not of his own authority. See WOODBURN KIRBY, THE WAR AGAINST

JAPAN 283 (1969). Later, the Treaty of Peace between the Republic of China and Japan provided that “[i]t is recognised that under [the multilateral Peace treaty of 1951] Japan has renounced all rights, title and claim to Taiwan (Formosa).” Treaty of Peace between the Republic of China and Japan, Apr. 28, 1952, 138 U.N.T.S. 3, 38. The fact that a treaty recognizes the loss of sovereignty of one state over a portion of its territory does not indicate that this succession actually took place on the date of the entering into force of the treaty itself, however. Succession is “the replacement of one State by another in the authority over a territory.” See Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, Apr. 7, 1983, 22 I.L.M. 306, 308 (1983). Therefore, effective substitution of authority must occur before succession actually takes place.

121. The PRC was established in 1949, but Guomindang forces have had

effective control over Taiwan since at least 1947, when they put down a rebellion by the indigenous Taiwanese people. See Parris Chang & Kok-ui Lim, Taiwan’s Case for

United Nations Membership, 1 UCLA J. INTL L. & FOREIGN AFF. 393, 413 (1996).

122. See Gazzini, supra note 114. The following legal explanation of the civil

war between Mao Zedong and Chiang Kai-shek relies on Gazzini’s analysis.

123. See, e.g., Lori Fisler Damrosch, The Taiwan Relations Act After Ten Years,

3 J. CHINESE L. 157 (1989).

124. One example of this is provided by discussions in U.S. legal and diplomatic

circles on the recognition of Communist China during the 1950s and 1960s. See

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The civil war between the Communist forces under the leadership of Mao Zedong and the Nationalist forces under Chiang Kai-shek started in 1927. 125 At least from 1931, two different subjects of international law existed on the territory of today’s “mainland China.” One was the Chinese government (usually called “Nationalist,” or Guomindang from the name of its ruling party at the time), which exercised effective authority over a large, though slowly shrinking, portion of mainland China. The other was the Communist entity, increasingly asserting its authority over portions conquered from the Nationalist government. 126 In 1949, the Nationalist government escaped to Taiwan, and hostilities between the two subjects effectively came to an end. That event did not affect in any way the identity of the two contenders. As far as the Communist People’s Republic of China (PRC) as a subject of international law is concerned, different theses have been proposed. The most widely accepted seems to be that the movement led by Mao Zedong, a mere insurgent before 1949, became a successor government to China and then changed the nation’s name to the PRC. After some years of uncertainty, so the argument goes, the United Nations acknowledged the situation by accepting the PRC as the sole Chinese representative in the organization, and practically all of the states that had previously rejected this position gradually accepted it. Thus, the argument links membership in international organizations, and in particular the permanent seat in the U.N. Security Council, not only to the issue of statehood in general, but also to the identity of the PRC and ROC as subjects of international law.

The incongruities deriving from this formulation are significant. First, as it was pointed out above, it is not clear how an insurgentwhich is a subject itselfmay turn into a mere organ of another subject. Second, the Republic of China did not disappear after Mao Zedong took power in mainland China. It is difficult to conceive how an insurgent becomes an organ of the very state against which it has fought and which the insurgent has forced to migrate to a different territory. Third, and more important, the PRC and the ROC govern separate territories, do not recognize any other subject as superior,

generally ROBERT P. NEWMAN, RECOGNITION OF COMMUNIST CHINA? 104-241 (1961)

(exploring a variety of political issues underlying the choices in favor and against recognition). See also Lung-chu Chen & W.M. Reisman, Who Owns Taiwan: A Search for International Title, 81 YALE L.J. 599 (1972); Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 93 AM. J. INT'L L. 879 (1999); Guiguo Wang & Priscilla M.F. Leung, One Country, Two Systems: Theory Into Practice, 7 PAC. RIM L. & POLY J. 279 (1998).

125. See Gazzini, supra note 114, at 141-49 (recounting the different phases of

the war).

126. Id.

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and effectively engage in the activities of the subjects of international law. In fact, the only reasonable explanation of the kind of relationship they have with each other is that the PRC and the ROC are two different subjects. At least since 1979, the Taipei government stated that the ROC “is an independent sovereign state with a legitimate established government.” 127 On July 10, 1999, the Taiwanese President noted that contacts between Taiwan and the PRC would be treated as “state-to-state relations.” 128 Starting from the assumption discussed above that recognition has no constitutive effect, the fact that the vast majority of the countries of the world do not recognize Taiwan does not, in itself, constitute a ground to deny the existence of the ROC as an independent state. 129 Recognition by most states that the PRC is, today, “China” in international relations cannot be deemed decisive. 130 The same can be said about the relationship between the United Nations and China. Since 1971, when the PRC replaced the ROC as the legitimate Chinese government holding the permanent seat in the Security Council, 131 the idea that the ROC is not a state any longerand, in any event, is not Chinahas gained support. 132 But the United Nationsas a sovereign intergovernmental organizationis allowed to decide which governments to admit as

127. Id. at 150.

128. See 1 SEAN D. MURPHY, UNITED STATES PRACTICE IN INTERNATIONAL LAW

1999-2001 134 (2002). It has been argued that the main reason why Taiwan is not a

state under international law is that it does not claim to be one. See JAMES CRAWFORD, THE CREATION OF STATES 151 (1979). Therefore, the ROC should arguably be considered a state after these proclamations. See also Alan M. Wachman, The State-to- State Flap: Tentative Conclusions about Risk and Restraint in Diplomacy Across the Taiwan Straits, 4 HARV. ASIA Q. (2000), available at http://www.fas.harvard.edu/

~asiactr/haq/200001/0001a008.htm.

129. The reasoning underlying most analyses, though, is based precisely on this

assumption. See, e.g., Michael D. Swaine, Trouble in Taiwan, FOREIGN AFF. 39, 46-47 (Mar.-Apr. 2004). Swaine claims that “recognition of a people’s status as a nation-state is conferred by the international community and is highly subject to the calculations

and interests of the most influential powers involved” and concludes that “ [b ] y this standard, Taiwan is not currently an independent nation.” Id. at 47. The real issue is, of course, whether this is the appropriate standard.

130. See Markus G. Puder, The Grass Will Not Be Trampled Because the Tigers

Need Not Fight—New Thoughts and Old Paradigms for Detente Across the Taiwan Strait, 34 VAND. J. TRANSNAT'L L. 481, 520-22 (2001) (providing the number of states

holding various different positions in respect to the PRC and the ROC).

131. As is well-known, G.A. Res. 2758 (XXVI) of October 25, 1971 did not treat

the admission of the delegates of the PRC as a membership issue, but rather as a question of the right to represent the founding member, China. See SIMMA, supra note 12, at 157; see also Samuel S. Kim, The People’s Republic of China in the United Nations: A Preliminary Analysis, 26 WORLD POL. 299 (1974) (addressing the events

surrounding this fundamental switch in U.N. members’ policy).

132. See, e.g., Anthony D’Amato, Purposeful Ambiguity as International Legal

Strategy: The Two China Problem, in THEORY OF INTERNATIONAL LAW AT THE

THRESHOLD OF THE 21ST CENTURY 109-11 (Jerzy Makarczyk ed., 1996).

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members and which governments to refuse. If the admission by the U.N. of Byelorussia and the Ukraine did not elevate those republics to the level of subjects of international law, 133 the refusal after 1971 to accept the ROC as a U.N. member does not necessarily have any effect on the personality of the entity involved. The alternative approach, which reconciles the factual reality of the situation with the relevant legal principles, is to acknowledge that notwithstanding the lack of recognition by a significant number of the international community’s members, it cannot be maintained that the PRC was not a state before its accession to the United Nations. Had the PRC attacked another country in the 1950s, this would have been regarded as a war of international character. U.N. Security Council Resolutions 82 to 85 dealing with the Korean War do not mention Chinese intervention in the conflict. 134 But the Security Council, with Resolution 88, did invite a representative of the PRC to discuss the terms for a cease-fire in 1950. 135 During the same period, moreover, the Security Council, as reflected in Resolution 87, considered that the dispute between the two Chinese entitiesnamely the armed invasion of the island of Taiwanwas likely to lead to international friction or to give rise to an international dispute. 136 In this case, the Security Council was concerned about a possible war between two states exercising their effective authority over different, well-defined territories. PRC and Taiwan were thus regarded as distinctand formally equalsubjects of international law. Since neither has ceased to exist to this date, they both continue to be distinct subjects of international law. U.S. courts have also recognized the fact that, regardless of political considerations, the ROC is a subject, the same subject with which the United States had entered into bilateral relations before the recognition of the PRC. For example, in New York Chinese TV, the U.S. Court of Appeals for the Second Circuit affirmed a finding that Taiwan was still a party to a copyright treaty with the United States signed in 1946. 137 If the treaty is still in force, and no issue of state succession is raised, then Taiwan still exists as the same subject

133. See supra note 12 and accompanying text.

134. Sec. Res. 82, U.N. SCOR, 5th Sess., 473d mtg. at 4, U.N. Doc. S/1501

(1950); Sec. Res. 83, U.N. SCOR, 5th Sess., 473d mtg. at 5, U.N. Doc. S/1511 (1950); Sec. Res. 84, U.N. SCOR, 5th Sess., 473d mtg. at 5, U.N. Doc. S/1588 (1950); Sec. Res.

85, U.N. SCOR, 5th Sess., 473d mtg. at 6, U.N. Doc. S/1657 (1950).

135. Sec. Res. 88, U.N. SCOR, 5th Sess., 520th mtg. at 7, U.N. Doc. S/1892

(1950).

136. Sec. Res. 87, U.N. SCOR, 5th Sess., 506th mtg. at 7, U.N. Doc. S/1836

(1950).

137. New York Chinese TV Programs Inc. v. U.E. Enter., 954 F.2d 847, 854 (2d

Cir. 1992).

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of international law. Other similar judicial decisions, by U.S. and non-U.S. courts, point to the same conclusion. 138 The last cases confirm the view that some entities that are not regarded as states under traditional international doctrine for various reasons actually do enjoy the status of a subject within the international realm and do possess all attributes normally sufficient to qualify as states. They are considered subjects distinct from the officially recognized government against which they are fighting; they can be predecessors in matters of state succession; they are entitled to enter into treaty relations with states on an equal footing. If they succeed in replacing the old government, they are considered representatives of the territory previously ruled by that one; if they do not succeed, but perish, they are considered to be just like any other conquered state. As long as these “competing” subjects coexist, political considerations may lead certain subjects to treat them differently from other states, but this does not signify that they are essentially of a different nature. In truth, considering personalities of entities involved in armed conflictswhether international or non-internationalis a delicate matter because a stable factual situation usually results only at the end of the hostilities. The examples of Czechoslovakia (which was regarded as a state after the end of the Great War, but as the same subject as the belligerent during the hostilities), the CSA (which was deemed a predecessor of the United States under international law, just like any other “conquered state”), and China and Taiwan (which have been distinct subjects of international law from the Chinese Civil War to this day), however, all show that issues of identity and the applicability of international law are not necessarily peculiar in times of armed conflict.

7. Napoleon

Napoleon was exiled to the island of Elba in 1814. An interpretation of the events surrounding his exile might be that Napoleon, as Emperor, was simply replaced as the head of the French state by King Louis XVIII; a simple substitution of governments took place, and France remained substantially the same subject. But the evidence points to a different conclusion. After Napoleon’s defeat, two different governments existed in France: one under Napoleon, which controlled no territory, and one under Louis XVIII. This is shown by the fact that, at the end of the war, two treaties were signed. One of the treaties was signed, on the one side,

138. See, e.g., Bank of China v. Wells Fargo Bank, 104 F. Supp. 59 (N.D. Cal.

1952); see also Gazzini, supra note 114, at 149-50 (citing the Kyoto District Court

Decision of 1977, reprinted in 22 JAPANESE ANN. INTL L. 151 (1978)).

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between Austria, Russia, Prussia, and Great Britain and, on the other, Napoleon, who renounced every right to France and accepted the isle of Elba as his new territory. 139 The other treaty was signed by the same Great Powers, on the one side, and by France, represented by Louis XVIII, on the other. The international acts were, thus, two:

one stipulated by Napoleon, on behalf of his Court, his family, and his army, 140 and the other by Louis XVIII. 141 The latter would be able to regain for himself and his dynasty the territory of France only after, and partly as a consequence of, the signing of this treaty. After Napoleon’s attempt to regain control of France and his confinement to Saint Helen in 1815, Lord Chancellor Eldon, upon the request of the British Prime Minister, wrote an opinion, which is of some interest, on Napoleon’s legal status. 142

If, before the Emperor of Elba [that is, Napoleon] entered France, to regain the throne he was not a French Subject, does his Attempt to regain that Throne again make him a French subject, or a French subject in rebellion – If, upon Grounds resulting out of the various situations & characters, in which [he] has been placed, & with which he has been clothed, you can consider him as, in no way, in the relation of Subject, or subject in rebellion ag[ainst] France, then may not the War be considered as a War against him, ag[ainst] him as our Enemy, without reference to any Character, that he may be alledged [sic] to have, bound up in the national Character of France – against him & his adherents making, as an Enemy against us, an hostile Attempt to break down the System of Gov[ernment], which existed in France, thereby introducing a System of Government in direct subversion of a Treaty with our Allies, founded upon their & our insecurity[,] under any such Government as he would introduce into France? If we can make this out, then might we not steer clear of the difficulty, that belongs to excluding from Peace with France or French Subject or a French Rebel? [H]e would then be a distinct, substantive Enemy, independent of any relation to the Sovereign of France, with whom we might be at Peace, or in Alliance? [A] conquered Enemy indeed, with whom, according to the Law of Nations, we should deal as mercifully as our Security would admit after he was conquered. But then we should only have to determine, as between ourselves & him, whether we did so treat, and the rules of the Law of Nations would be to be applied in the

139. Elba was not part of France, but rather, terra nullius since the extinction of

the Ludovisi dynasty. This demonstrates how Napoleon was not restricted to a smaller territory than the one he was governing before; rather, he “migrated” with his court and his (drastically diminished) army. See MIELE, supra note 32, at 18.

140. Traité entre l’Autriche, la Russie et la Prussie, d’une part, et Napoleon

Bonaparte de l’autre; avec accession partielle de la Grande-Bretagne, Apr. 27, 1814, 1

Martens Recueil des Traités 696 (Supp.).

141. Traité de paix signé entre la France et l’Autriche et ses alliés, May 30,

1814, 2 Martens Recueil des Traités 1 (Supp.).

142. John Hall Stewart, The Imprisonment of Napoleon: A Legal Opinion by

Lord Eldon, 45 AM. J. INTL L. 571 (1951). This opinion was also published and

thoroughly explained in GAETANO ARANGIO-RUIZ, SULLA DINAMICA DELLA BASE SOCIALE NEL DIRITTO INTERNAZIONALE 103-07 (1954) [hereinafter ARANGIO-RUIZ, DINAMICA],

where other similar examples are also cited.

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decision of that Question of fact, without reference to any Rule of that Law to him as a Subject of any Sovereign?

Great Britain thus considered Napoleon to be the rival “power,” a government. Conversely, it considered France not as an enemy, but as an ally. On March 25, 1815, Austria, Great Britain, Prussia, and Russia had even signed a treaty, 143 to which France acceded, 144 according to which, “having taken into consideration the consequences which the Invasion of France by Napoleon Bonaparte, and the actual situation of that Kingdom [created],” the parties agreed:

to direct in common, and with one accord, should the case require it, all their efforts against [Napoleon], and against all those who should already have joined his faction, or shall hereafter join it, in order to force him to desist from his Projects, and render him unable to disturb in future the tranquility of Europe and the General Peace. 145

The subject of international law against whom the war had been foughtand wonwas Napoleon. He was the government who, once defeated, had been conquered by Britain. 146 Diplomatic correspondence of Joseph de Maistre, diplomat in St. Petersburg on behalf of the Kingdom of Sardinia, dated July 13, 1815 confirms that “Ainsi les alliés déclarent solennement qu’ils ne font la guerre qu’à sa personne [that is, Napoleon]; et lorsqu’enfin sa personne est tombée sous leurs mains, ils n’en parlent plus!” 147 Had he been considered a war prisoner, albeit a former head of state, the obligation on Great Britain would have been to send him back to his country. The only explanation is that he was not a subject of France, but that he had somehow elevated himself to a subject of international law. 148

143. Treaty of Alliance, Mar. 25, 1815, Aus.-Gr. Brit.-Pruss.- Russ., 64 Consol. T.

S. 28.

144. Id. at 66 (Declarations of the Plenipotentiaries of the Four Powers, Relative

to the Accession of the King of France to the Preceding Treaty, May 1815).

145. Id. at 31-32.

146. Napoleon had a territory and a population, though small, when he was

given the kingdom of Elba. In contrast, he had none on Saint Helen, but this did not prevent Great Britain from considering herself to be in a permanent state of war

against him. See ARANGIO-RUIZ, DINAMICA, supra note 142, at 106-07.

147. 2 JOSEPH MARIE MAISTRE, CORRESPONDANCE DIPLOMATIQUE DE JOSEPH DE

MAISTRE, 1811-1817 87 (Albert Blanc ed., 1860) (emphasis in original).

148. ARANGIO-RUIZ, DINAMICA, supra note 142, at 106-07.

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III. POWERS AS SUBJECTS OF INTERNATIONAL LAW

A. Subjects superiorem non recognoscentes

All the cases analyzed above make up what Max Weber would have called “inconvenient facts,” those which a party to a struggle does not wish to see. 149 Common experience dictates that a state remains the sameretaining the same name, the same position in the international community, the same rights and duties, the same governmental structureeven if it acquires large swaths of new territory 150 or, conversely, loses extensive areas previously under its jurisdiction. Territory and population undoubtedly help in establishing or consolidating a subject of international law and in assisting the subject in claims of being a sovereign center of authority. 151 The main issue, however, is the effective control over territory and population—and the support that this effective control gives to the idea of being the superior entity. 152 When a subject does not have

149. Max Weber, Science as a Vocation, in FROM MAX WEBER: ESSAYS IN

SOCIOLOGY 147 (Hans Gerth & Wright Mills eds., 1975).

150. See ENRICO ZAMUNER, LA FORMAZIONE DELLO STATO ITALIANO 47-51 (2002).

Zamuner carefully reviews the positions of scholars with respect to the conquest of the Italian peninsula by the Kingdom of Sardinia during the early 1860s by comparing preconceived ideas with documents from that time. One of the conclusions is that the identity of the Kingdom of Sardinia, as a subject of international law, was not altered by the conquest of the other states and by the modification of its name into “Kingdom of Italy.”

151. For an example of the many pronouncements in this sense, see the Aaland

Islands case of 1920, where the report of the International Committee of Jurists appointed to study the status of the islands stated that Finland did not become a sovereign state “until a stable political organization had been created, and until the

public authorities had become strong enough to assert themselves throughout the territories of the state” by themselves. LEAGUE OF NATIONS O.J. Spec. Supp. 4, at 8-9

(1920).

152. The often cited Opinion No. 1 by the Badinter Commission regarding the

dissolution of Yugoslavia is somewhat misleading. The Commission, in order to reach its conclusion that the Socialist Federal Republic of Yugoslavia was in the process of dissolution, noted three items: (1) the willingness of some republics to attain independence (as such, not an element showing the creation of a new subject); (2) the fact that the “composition and workings of the essential organs of the Federation no longer meet the criteria or participation and representativeness inherent in a federal State” (hardly a sign that a subject of international law is ceasing to exist); (3) the fact that the “recourse to force has led to armed conflict between the different elements of the Federation” and that “the authorities of the Federation and the Republics have shown themselves to be powerless to enforce respect for the succeeding ceasefire agreements.” Only the last item (the loss of effective control by the federal organs) might justify the conclusion that new independent entities were emerging, although the fact that the republics seemed unable to enforce cease-fires might suggest that they

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authority over territory or population, as in the case of international organizations or governments in exile, it is granted exceptions from the (territorial) jurisdiction of the state(s) where it is based. The fact that government is therefore the essential element characterizing states as subjects of international law also explains the common conception that, when no government is effectively functioning, no state actually exists. 153 This is the case for all types of annexations: the government of the annexing country is simply considered to be extending jurisdiction over the territory and population of the annexed country or territory. 154 It is also the case for states ceasing to exist for debellatio, a conquest so total that it includes devolution of sovereignty. 155 In all such situations, and in

were not in control of their internal structures and were not, therefore, subjects of international law. Conference on Yugoslavia, Arbitration Committee, Opinion No. 1, July 4, 1992, 31 I.L.M. 1494.

153. So-called “failed states” are actually governments unable to assert

themselves as superiorem non recognoscentes. With regard to the confused situation of

Somalia and Somaliland, see GERARD KREIJEN, STATE FAILURE, SOVEREIGNTY AND EFFECTIVENESS: LEGAL LESSONS FROM THE DECOLONIZATION OF SUB-SAHARAN AFRICA

84-87 (2003); Steve Kibble, Somaliland: Surviving Without Recognition; Somalia:

Recognised but Failing?, 15 INTL REL. 3 (2001); Riikka Koskenmäki, Legal Implications Resulting from State Failure in Light of the Case of Somalia, 73 NORDIC J. INTL L. 1 (2004) (not distinguishing, however, the notions of “state” and of “subject of international law”). See also Jan Nemitz, The Legal Status of the Republika Srpska, 43(2/3) OSTEUROPA-RECHT 89 (1997) (providing a theoretical analysis of whether the “entity” of Republika Srpska within Bosnia and Herzegovina may be considered able to assert itself as a state under international law).

154. One of the most representative examples of annexation is the German

Anschluss of Austria in 1938. See, e.g., ROBERT E. CLUTE, THE INTERNATIONAL LEGAL STATUS OF AUSTRIA 1938-1955 (1962); James Wilford Garner, Question of State Succession Raised by the German Annexation of Austria, 32 AM. J. INTL L. 421 (1938); Schausberger, Der Anschluss, in ÖSTERREICH - DIE ZWEITE REPUBLIK (Erika Weinzier ed., 1972); Herbert Wright, The Legality of the Annexation of Austria by Germany, 38 AM J. INTL L. 621 (1944). The Preamble to the so-called 1955 “State Treaty” between Austria and the four Occupying Powers (U.S.S.R., U.S., U.K., and France) explicitly mentions the annexation of Austria and of its “participation in the war as an integral part of Germany.” See State Treaty, May 15, 1955, 6 U.S.T. 2369, 217 U.N.T.S. 223. Article 1 implies that, after 1938, Austria did not exist anymore as a subject superiorem non recognoscentes: “The Allied and Associated Powers recognise that Austria is re-established as a sovereign, independent and democratic country.” Id. The

same view is taken by HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 262 (1952).

155. 1 D.P. O’CONNELL, INTERNATIONAL LAW 441 (2d ed. 1970). The typical case

is that of Germany after the Second World War. See Unconditional Surrender of German Forces, May 8, 1945, reprinted in 1945 AM. J. INTL L. SUPPL. 169 (1945); see also Declaration Regarding the Defeat of Germany, in 7 DOCUMENTS ON AMERICAN FOREIGN POLICY 217 (Leland M. Goodrich & Marie J. Carroll eds., 1947) (“There is no central Government or authority in Germany capable of accepting the responsibility for the maintenance of order, the administration of the country, and compliance with the requirements of the victorious Powers.”). In July 1951, President Truman expressed his view that “[t]he rights of the Occupying Powers result from the conquest of Germany, accompanied by the disintegration and disappearance of its former government, and the Allied assumption of supreme authority.” GERHARD VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 289 (1957) (quoting the Information Bulletin from the Office of the High Commissioner for Germany, August 1951). In this case, the

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many similar ones, the territory and the population continue to exist; the state is said to have disappeared, however, because of the lack of an effective and independent government. A short historical analysis may help to establish a “least common denominator” rule for identifying subjects of international law. Throughout the history of modern international relations, the main feature of subjects of international law has been their ability to assert that they are not subordinates to other authorities; in other words, subjects of international law were those entities superiorem non recognoscentes, able not to recognize any superior within the international community. This feature is at the basis of the fact that the international community is not structured as a hierarchical society, but rather as a community of (formal) peers. 156

defeat had as a consequence the complete annihilation of the state apparatus—and therefore the lack of any identity of the Reich with the subjects later arisen on the same territory (the German Democratic Republic and the German Federal Republic). This is shown by the fact, for example, that France, the U.K., and the USA decided in 1950 to authorize the West German government to “give effect to” German Reich treaties. See Elmer Plischke, Reactivation of Prewar German Treaties, 48 AM. J. INTL L. 245, 252 (1954); see also Frederik A. Mann, The Present Legal Status of Germany, in

JAHRBUCH FÜR INTERNATIONALES UND AUSLÄNDISCHES ÖFFENTLICHES RECHT 27 (1948)

(concluding that “Germany has ceased to be an independent sovereign state in the sense of international law, but continues to be a state”); Kay Hailbronner, Legal Aspects of the Unification of the Two German States, 2 EUR. J. INTL L. 18, 22 (1991); Hans Kelsen, The Legal Status of Germany According to the Declaration of Berlin, 1945 AM. J. INTL L. 518 (1945). No relevance can be given, in the international arena, to domestic decisions based on the legal fiction that the Federal Republic of Germany was identical (or “partly identical”) to the German Reich as an “international legal subject.” See, e.g., Entscheidungen des Bundesverfassungsgerichts [BVERFGE] [Federal Constitutional Court] 36, 1 (16, 22) (F.R.G.), available at http://www.oefre.unibe.ch/law/ dfr/bv036001.html (last visited Nov. 2004). The decision states that “[d]ie

Bundesrepublik Deutschland ist also nicht ‘Rechtsnachfolger’ des Deutschen Reiches, sondern als Staat identisch mit dem Staat ‘Deutsches Reich’, - in bezug auf seine räumliche Ausdehnung allerdings ‘teilidentisch.’” Id. But, later on, it states that “[d]ie Deutsche Demokratische Republik ist im Sinne des Völkerrechts ein Staat und als solcher Völkerrechtssubjekt.” Id. Therefore, regardless of the statement that there was a German unitary state comprising the territories and populations of Federal Republic of Germany and of the German Democratic Republic, the decision must recognize that the German Democratic Republic “is a state in the sense of international law and, as such, a subject of international law.” Id. This entails that the two German states were both independent subjects of international law.

156. The United Nations does not constitute anything short of a world-wide

society. See Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174 (Apr. 11). On the general issue of the personality of the United Nations and its consequences, see Gaetano Arangio-Ruiz, The ‘Federal Analogy’ and U.N. Charter Interpretation: A Crucial Issue, 8 EUR. J. INTL L. 1 (1997). Various legal and political scholars have suggested that, since the end of the Cold War, a major “shift” in international relations has occurred which would have led to an increasingly “verticalized” organization of the international community. See, e.g., MICHAEL HARDT & ANTONIO NEGRI, EMPIRE CH. 2 (2000); Ugo Mattei, Globalization and Empire: A Theory of Imperial Law: A Study on U.S. Hegemony and the Latin Resistance, 10 IND. J. GLOBAL LEGAL STUD. 383, 399-402 (2003). In my opinion, these suggestions lack decisive proof in order to be adopted as useful legal theories.

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States, as we know them, were born as entities superiorem non recognoscentes when weakening political and religious bodies gradually lost their purported universal jurisdiction during the Middle Ages. 157 The expression ius inter gentes did not appear until after the Westphalian Peace, when it was used by the English scholar Richard Zouche. 158 Only at this time was there a commonly shared doctrinal acknowledgement of the fact that the respublica christiana had broken up into different effective authorities; international law